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In re Seizure of Weapons of Baranyay

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 16, 2007

IN THE MATTER OF THE SEIZURE OF WEAPONS OF GREGORY J. BARANYAY.

On appeal from the Superior Court of New Jersey, Chancery Division, Ocean County, FO-15-321-06 and FV-15-595-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 5, 2006

Before Judges Coburn and R. B. Coleman.

In this matter, appellant Gregory J. Baranyay appeals from a February 22, 2006 consent order wherein he agreed to forfeit certain weapons seized by the Lacey Township Police Department; agreed to sell his firearms and other weapons to a licensed firearms dealer; and agreed to surrender his New Jersey Firearms Purchaser Identification Card (FPIC). For the reasons that follow, we remand this matter for further proceedings with regard to the FPIC. In all other respects, the February 22, 2006 order is affirmed.

On September 16, 2005, Doris Baranyay, wife of appellant, and Amanda Baranyay, daughter of appellant, each obtained a temporary restraining order (TRO) under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, that, among other things, prohibited appellant from possessing any and all firearms or other weapons, permits and firearms purchaser ID cards. Appellant was ordered to surrender same immediately, and the officers from the Lacey Township Police Department, who served the TRO upon appellant, were authorized to seize any rifles, shotguns and knives in appellant's possession and to give a receipt for the property seized. N.J.S.A. 2C:25-21d(1)(b). On September 22, 2005, the date scheduled for the final hearing on the domestic violence complaint, the court determined that the allegations of domestic violence made by appellant's wife were not substantiated and the TRO entered on her complaint was vacated. That same date the TRO obtained by the daughter was dismissed at her request.

The weapons that had been seized were delivered to the Ocean County Prosecutor's Office, N.J.S.A. 2C:25-21d(2), and on December 19, 2005, following a conference to determine whether those weapons were to be forfeited, returned, or otherwise disposed of, a hearing date was set for February 22, 2006. On that date, the parties again conferred and defendant, acting pro se, consented to the sale of the firearms and weapons and to the surrender of a .38 caliber handgun and his FPIC, which he had retained in contravention of the TROs. Appellant acknowledged, both orally before the court and in writing, his consent to the surrender of the weapons and FPIC. Appellant, nevertheless, seeks now to appeal the consent order.

Appellant argues that his consent to the order of forfeiture was not knowing, intelligent, or voluntary under the circumstances; that there were no grounds to forfeit his weapons; and that he was denied his right under the Sixth Amendment of the Federal Constitution to effective assistance of counsel. The State responds that appellant knowingly consented to have his property sold or destroyed, but it concedes that appellant may not have knowingly forfeited his right to own or possess firearms in the future.

Ordinarily, a consent order entered into by the parties is not appealable for the purpose of challenging its substantive provisions. O'Loughlin v. Nat'l Cmty. Bank, 338 N.J. Super. 592, 602 (App. Div.), certif. denied, 169 N.J. 606 (2001); Pressler, Current N.J. Court Rules, comment 2.2.3 on R. 2:2-3 (2007). However, where, as here, the facts and circumstances give rise to a serious question as to whether the apparent consent was knowingly given or was a result of an inadvertent or uninformed assent, the propriety of the substantive relief should be more clearly examined.

The applicable provisions of the Prevention of Domestic Violence Act contemplate that seized weapons may or may not be returned to the owner. In that regard, N.J.S.A. 2C:25-21d(3), in pertinent part, provides:

Weapons seized in accordance with the "Prevention of Domestic Violence Act of 1991", . . . shall be returned to the owner except upon order of the Superior Court. The prosecutor who has possession of the seized weapons may, upon notice to the owner, petition a judge of the Family Part of the Superior Court, Chancery Division, within 45 days of seizure, to obtain title to the seized weapons, or to revoke any and all permits, licenses and other authorizations for the use, possession, or ownership of such weapons pursuant to the law governing such use, possession, or ownership, or may object to the return of the weapons on such grounds as are provided for the initial rejection or later revocation of the authorizations, or on the grounds that the owner is unfit or that the owner poses a threat to the public in general or a person or persons in particular.

A hearing shall be held and a record made thereof within 45 days of the notice provided above. No formal pleading and no filing fee shall be required as a preliminary to such hearing. The hearing shall be summary in nature. Appeals from the results of the hearing shall be to the Superior Court, Appellate Division, in accordance with the law.

If the prosecutor does not institute an action within 45 days of seizure, the seized weapons shall be returned to the owner.

After the hearing the court shall order the return of the firearms, weapons and any authorization papers relating to the seized weapons to the owner if the court determines the owner is not subject to any of the disabilities set forth in N.J.S. 2C:58-3c[.] and finds that the complaint has been dismissed at the request of the complainant and the prosecutor determines that there is insufficient probable cause to indict; or if the defendant is found not guilty of the charges; or if the court determines that the domestic violence situation no longer exists.

After the TROs issued against appellant were dismissed, a hearing was scheduled to determine the disposition of the seized items, but that hearing was never conducted. Consequently, the court made no determination whether or not appellant was fit to possess firearms or whether or not his possession of firearms posed a danger to the parties in the dismissed domestic violence action or to the public in general. Based solely on the transcripts before us on the appeal, we cannot ascertain whether the purported surrender of the FPIC was knowing and voluntary or whether this case falls within the class of cases where involuntary forfeiture is warranted. We cannot and do not reach the merits of this issue on the meager record before us.

The Court has recognized that the Legislature did not intend that courts return guns to a defendant in a domestic violence action, even after the dismissal of the complaint, if the court finds that the defendant poses a threat to public health, safety or welfare, and, of course, the defendant is entitled to a hearing regarding any disqualification. In Re Return of Weapons to J.W.D., 149 N.J. 108, 116 (1997). See also N.J.S.A. 2C:58-3c; N.J.S.A. 2C:25-21d(3) and (4). In this instance, the transcript of the proceedings, dated February 22, 2006, adequately reveals that appellant confirmed he had no objection to the sale of his weapons.

On the other hand, it does not adequately reveal whether the apparent consent to forfeit the FPIC was informed or intended. In its respondent's brief herein, the State takes the position that appellant did consent to sell his firearms but notes that such consent "does not revoke and forfeit his firearms privileges under N.J.S.A. 2C:39-7b(3) or N.J.S.A. 2C:58-3c(8)." Thus, the State has candidly recognized that appellant's consent to surrender his FPIC and his right to possess weapons in the future may have been uninformed and unintended. Accordingly, in the interest of fairness and consistent with the statutory procedure prescribed in N.J.S.A. 2C:25-21d, quoted at length above, we vacate that portion of the February 22, 2006 order that provides for the surrender of appellant's New Jersey FPIC. We remand the matter for further proceedings concerning the propriety of the return or reissuance of appellant's FPIC. We do not retain jurisdiction.

Dismissed.

20070416

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